UNA ANN SMIT V Mutual Pharmacy

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/489/2016
HARARE 31 MAY 2016
CASE NO. LC/H/30/16
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/489/2016

HARARE 31 MAY 2016				       CASE NO. LC/H/30/16

AND 19 AUGUST 2016

UNA ANN SMIT							Appellant

MUTUAL PHARMACY						Respondent

Before The Honourable G. Musariri, Judge:

For Appellant 		Ms U.A. Smit

For Respondent		Mr T. Chiwuta

MUSARIRI, J:

On 21st December 2015 at Harare, Arbitrator T. Zimbudzana issued an arbitration award.  He dismissed Appellant’s claim of unfair dismissal from employment by Respondent.  He however awarded her claim for underpayments and terminal benefits.  Appellant then appealed to this Court against the award.  Respondent opposed the appeal.

Dismissal

Appellant argued that her dismissal was unlawful because it was done whilst she was on sick leave.  She claimed she was ill for a long time.

During that period ownership of the Pharmacy changed hands.  She further claimed that the new owners opted to get rid of her because of her poor health.

Respondent argued that the dismissal was lawful.  Appellant appeared before a disciplinary committee.  She was found guilty after a hearing at which she had the opportunity to defend herself.  In any event she did not dispute the charges laid against her.  She indeed admitted wrongdoing as confirmed by her letter dated the 30th August 2014.  A copy is filed of record.  On that basis I agree with the Arbitrator that her dismissal could not be faulted.

Underpayments

Appellant based her claim for underpayment on the collective bargaining agreement for the commercial sectors.  Yet Respondent’s operations fell under the NEC for the medical industry.  It followed therefore that her claim was unfounded.  Thus I agree with the Arbitral that, save for transport allowance, the claim could not be sustained.

Terminal benefits

Appellant claimed that her terminal benefits ought to be calculated on the basis of the salary she claimed under the subtitle underpayments.  Given my position thereon I cannot agree.  In any event the Arbitrator awarded her terminal benefits which are yet to be quantified.

August 2014 salary

The Arbitrator awarded her

“Prorated salary for August 2014 before claimant was suspended.”

The same is yet to be quantified.

Medical expenses

Appellant sought to sneak in a claim for medical expenses.  Such was not amongst the issues referred to the Arbitrator.  It was not dealt with at arbitration.  It is therefore improper to raise it for the first time on appeal against the arbitration award.

All in all I find that the appeal lacks merit and ought to be dismissed.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

The arbitration award issued by Arbitrator T. Zimbudzana is upheld.

G. MUSARIRI

J-U-D-G-E